Medical malpractice – standard of care
Trial court correctly denied plaintiffs' motion for a judgment notwithstanding the verdict where the evidence showed that defendants complied with the applicable standard of care in not prescribing a vaccine for plaintiff because this vaccine was 'contraindicated' in view of plaintiff's fever and ongoing active infection.
The 1st District Appellate Court, 5th Division, has affirmed a Cook County Circuit Court jury verdict. Circuit Judge Cheryl A. Starks presided in the trial court.
In late December 1999, plaintiff John Matthews became ill with severe chills, weakness, fever, fatigue and nausea. On Jan. 1, 2000, he went to the emergency room at Gottlieb Memorial Hospital and was admitted. Dr. Janet Aganad was assigned as the plaintiff's primary care physician during his admission. Aganad ordered intravenous fluids, antibiotics and pain medication.
Aganad consulted with Dr. Donna Hanlon, an infectious-disease specialist, and a surgeon and after further testing, the surgeon confirmed that the plaintiff had a gallbladder condition. The plaintiff then had his gallbladder removed. The infectious-disease specialist saw the plaintiff from Jan. 3 to Jan. 7, 2000, and the plaintiff was told that blood cultures showed that he had a streptococcal pneumoniae infection for which antibiotics were prescribed.
During follow-up visits with Aganad on Jan. 18 and Feb. 4, 2000, the plaintiff complained of severe back pain, chills and sweating. A physical examination and tests on these follow-up visits were not conclusive that the pneumococcal infection had cleared up. After this, the plaintiff had no further contact with Aganad.
In November 2001, the plaintiff began seeing Dr. Peter Bell to manage his blood pressure and in June 2002, he was admitted to Mount Sinai Hospital under the care of Bell. The plaintiff then was diagnosed with streptococcus pneumoniae septicemia and aortic valve endocarditis, which required aortic valve replacement surgery in October 2002.
In November 2003, the plaintiff and his wife filed suit, alleging that Aganad was negligent in failing to offer Pneumovax to the plaintiff either during his admission to Gottlieb Memorial or during follow-up visits. The plaintiff alleged that because he is black and had already had the pneumococcal infection, he was at increased risk for contracting it again.
The plaintiffs alleged that the failure to administer Pneumovax resulted in the infection and related damages, including endocarditis, aortic valve replacement, a coronary artery bypass graft and future medical care and risks. They also alleged that Hanlon was negligent in failing to advise Aganad to offer Pneumovax to the plaintiff.
Aganad testified that the Pneumovax vaccine is not recommended by medical experts, including the Center for Disease Control, for patients that are febrile or have an active infection. When he was admitted to the hospital, the plaintiff was febrile and had an active infection.
Hanlon testified that she agreed with Aganad that the plaintiff did not meet any of the criteria established by the CDC for receiving the vaccine and that the vaccine was "contraindicated" because of the ongoing infection and fever.
The plaintiff's medical expert, Dr. Angelo Scotti, testified that the standard of care requires that a patient with a prior pneumococcal infection receive the vaccine. However, Scotti was unable to cite any textbook, medical article or publication supporting this testimony. He also testified that it more likely than not that if the plaintiff had received the Pneumovax he would not have contracted endocarditis.
The jury returned a verdict in favor of all defendants. On appeal, the plaintiffs argued that Aganad's sole reliance on CDC guidelines was not the appropriate standard of care and that the standard of care required the administration of the vaccine to the plaintiff because, as a black man, he was three to five times more likely to contract an infection and because he was predisposed to contracting another one since he had already suffered an infection.
The appeals court rejected that argument, saying it agreed with Aganad and Gottlieb that the evidence showed that the appropriate standard of care was conclusively established by the CDC guidelines and physician judgment and that there was compliance with that standard.
The appeals court said that all witnesses agreed that giving the vaccine was contraindicated in the plaintiff's case in view of his fever and ongoing active infection.
"Thus, even if plaintiffs could have somehow established that prescribing the vaccine was initially indicated for plaintiff, it nonetheless remained that Aganad complied with the standard of care in determining that his active infection militated against administering the vaccine," the appeals court said.
John and Barbara Matthews v. Janet Aganad, Gottlieb Memorial Hospital and Donna Hanlon, No. 1-08-0499. Justice Michael P. Toomin wrote the court's opinion with Presiding Justice James Fitzgerald Smith and John P. Tully concurring. Released Sept. 4.